Introduction
Six years after the Lisbon Treaty’s entry into force, its constitutional implications for EU external action have gradually been revealed, most notably by the actions of the High Representative of the Union for Foreign Affairs and Security Policy (‘High Representative’), the European External Action Service, and various Union delegations abroad,Footnote 1 and more subtly through the incremental interpretation of the post-Lisbon Treaties by the Court of Justice of the EU.Footnote 2 Among its constitutionally prescribed duties, the Court is posed the task of deciding whether EU action at home or abroad is reconcilable with the Union’s basic constitutional charter, the Treaties.Footnote 3 Characteristic of the EU’s constitution is that it is based on the principle of conferral,Footnote 4 and that it provides for a balance within the institutional framework established by the Treaties.Footnote 5
This article focuses on the Court’s constitutional roleFootnote 6 as adjudicator in several cases involving disputes concerning the principles of conferral and institutional balance: Mauritius Agreement Footnote 7 (on the common foreign and security policy – ‘CFSP’), Philippines PCA Footnote 8 (on development cooperation), and Daiichi Sankyo Footnote 9 and Conditional Access Convention Footnote 10 (on the common commercial policy – ‘CCP’).
These cases illustrate that post Lisbon, the choice of the appropriate legal basis for external action remains constitutionally significant, both because the principle of conferral requires that any measure taken be based upon a Treaty provision,Footnote 11 and because the legal basis chosen will affect the respective roles of the various Union institutions.Footnote 12 They also demonstrate that, despite the alleged abolition of the pillars, the need to delineate areas of external competence still poses problems.Footnote 13
This article examines the use of the so-called ‘centre of gravity test’ as a means to delineate areas of competence, resulting in the suggestion that this test may be unsuitable for establishing the legal basis for external action, especially when applied to the conclusion of international agreements involving development cooperation, the CCP, or the CFSP. The Union and the Member States may view the goals of an agreement differently from the other parties, or place varying emphasis on its different component parts. It may even prove impossible to distinguish the principal from the secondary goals of an agreement.Footnote 14 This article explores the possibility that the Lisbon Treaty may have unintentionally reinforced this effect.
The article considers the appropriateness of the ‘centre of gravity’ test as a means to determine the predominant subject matter of an agreement. This is followed by an analysis of the objectives-based competence delimitation method, focusing specifically on distinguishing between the breadth of development cooperation and CCP policies, as opposed to those of other policy areas, and on the confines of the CFSP. As the constitutional significance of choosing the appropriate legal basis cannot be properly understood without examining the practical implications for the institutional balance,Footnote 15 the article analyses the impact of that choice on Parliament’s scrutiny of international agreements within the context of the CFSP. Finally, the article offers concluding thoughts on the broader implications of the case law examined here.
A brief summary of the cases
Philippines PCA concerned a Commission proposal resulting in a Council decision on the signing of the Framework Agreement on Partnership and Cooperation between the EU and its Member States and the Philippines (‘Philippines Agreement’). The Commission found legal bases for its proposal in Articles 207 and 209 TFEU, which address, respectively, the CCP and development cooperation.Footnote 16 The Council decision authorising the signing of this agreement invoked additional legal bases to justify the provisions of the agreement concerning the readmission of third-country nationals (Article 79(3) TFEU), transport (Articles 91 and 100 TFEU), and the environment (Article 191(4) TFEU). The Court held that these provisions did not contain obligations that were so extensive that they constituted objectives distinct from development cooperation and hence needed separate legal bases. The Court annulled the decision insofar as it contained these supererogatory legal bases added by the Council.
Mauritius Agreement arose from a procedural dispute concerning anti-piracy measures to be taken off the coast of Somalia.Footnote 17 On 12 July 2011 the Council adopted a decision authorising the signing of the EU-Mauritius Agreement setting the conditions of transfer for suspected pirates arrested and detained by the EU’s naval mission EU NAVFOR,Footnote 18 both during and after transfer (the ‘Mauritius Agreement’).Footnote 19 The Agreement itself was signed on 14 July 2011 and has been provisionally applied since. The Council decision was adopted on the legal bases of Article 37 TEU (CFSP) and Article 218(5)-(6) TFEU (procedure to negotiate and conclude international agreements). While agreeing with the Council that Article 37 TEU was the appropriate legal basis, the Court held that, by failing to inform Parliament immediately and fully at all stages of the negotiations, and conclusion of, the EU-Mauritius Agreement, the Council had violated Article 218(10) TFEU. Since that provision contains an essential procedural requirement within the meaning of Article 263, second paragraph TFEU, the contested decision had to be annulled (albeit in this instance with maintenance of its effects).
In Daiichi Sankyo, the Court was asked to consider whether Article 27 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) falls under the competence of the Member States, or is rather an exclusive external competence of the EU. The Court had previously heldFootnote 20 that only the parts of the TRIPs Agreement specifically relating to international trade fell within the scope of the CCP. However, post Lisbon, Article 207(1) TFEU specifies that ‘commercial aspects of intellectual property’ are covered by the CCP. Nonetheless, the Court held that Union acts need to have more than fleeting implications for international trade in order to be covered by the CCP. A Union act therefore ‘falls within the CCP if it relates specifically to international trade in that it is essentially intended to promote, facilitate or govern trade and has direct and immediate effects on trade’. Consequently, only rules on intellectual property with a specific link to international trade are capable of falling within the concept of ‘commercial aspects of intellectual property’, this being the case regarding the TRIPs Agreement.
Conditional Access Convention was provoked by concerns as to the appropriate legal basis for the European Convention on the legal protection of services based on, or consisting of, conditional access.Footnote 21 Should the Council Decision to sign the Convention on behalf of the EU have been based on Article 207(4) TFEU (CCP) or rather on Article 114 TFEU (internal market)? The Court recalled its findings in Daiichi Sankyo on the scope of the CCP, and concluded that the primary objective of the Council Decision had a specific connection with international trade and was therefore covered by the CCP.
Gravity revisited
The Court’s settled case law on the choice of the appropriate legal basis states that the choice of legal basis must rest on objective factors amenable to judicial review, including the aim and content of the measure.Footnote 22 If a measure pursues a twofold purpose or has a twofold component and if one of those is identifiable as the main or predominant purpose or component, the measure must be founded on a single legal basis: the legal basis required by the main or predominant purpose or component. Exceptionally, when it is established that the measure pursues several objectives that are inseparably linked, without one being secondary and indirect to the other, the measure must be founded on the various corresponding legal bases. However, such a dual legal basis is impossible when the procedures prescribed by the relevant legal bases are incompatible.Footnote 23 The cases examined here use a specific form of the ‘centre of gravity’ test. Notably, the disagreement between the Commission and the Council in Philippines PCA as to whether the Philippines Agreement implies obligations other than development cooperation should be seen in the light of Portugal v Council.Footnote 24 There, Portugal challenged the Community’s competence and the choice of legal basis for Council Decision 94/578/EC concerning the conclusion of the Cooperation Agreement between the European Community and the Republic of India on Partnership and Development.Footnote 25 It objected to the inclusion in the Cooperation Agreement of human rights, energy, intellectual property, tourism, and drug abuse control provisions. The Court used a two-pronged test to determine the scope of development cooperation agreements. To qualify as such, an agreement needed to pursue the development cooperation objectives then contained in Article 130u TEC, which were, however, so broadly written that a development cooperation agreement could additionally address extraneous matters without altering its essential characterisation. Furthermore, the essential object of an agreement, rather than the contents of its individual provisions, would determine its characterisation, provided that such provisions did not impose such extensive obligations concerning specific matters that those obligations constituted objectives distinct from those of development cooperation.Footnote 26 The Court found on the merits that the provisions of the agreement aimed to promote development cooperation objectives. The manner in which cooperation in each specific area was to be achieved was not prescribed in concrete terms. Accordingly, the provisions on energy, intellectual property, tourism, culture and the control of drug abuse could be considered to be an integral part of the development cooperation agreement between the EU and India.
In Philippines PCA, the Court examined whether provisions relating to readmission, transport and the environment required the use of their own legal bases, or could stand on the legal basis used for development cooperation policy, continuing the line of thought introduced in Portugal v Council. Specifically, the Court recalled and confirmed its two-pronged test to determine the scope of development cooperation agreements.Footnote 27 The Court used a particular form of the centre of gravity test: the ‘absorption doctrine’,Footnote 28 as introduced in Opinion 1/78, i.e. that ‘an agreement must be assessed having regard to its essential objective rather than in terms of individual clauses of an altogether subsidiary or ancillary nature’.Footnote 29 The essential characterisation of the International Agreement on Natural Rubber at issue in Opinion 1/78 as a CCP agreement was not altered by the fact that it also covered various secondary subjects, such as technological assistance, research programmes, industrial labour conditions, and consultation on national tax policies. The main objective ‘absorbed’ the other provisions. The Court had already used a similar line of reasoning in Portugal v Council: the legal basis for development cooperation ‘absorbed’ the other substantive provisions, with the notable exception of those involving trade. In Philippines PCA, the Court applied a ‘centre of gravity’ test in order to determine whether the use of additional legal bases alongside those for development cooperation and CCP was justifiable. However, it did so starting from the premise that development cooperation policy constituted the main purpose or component of the Philippines Agreement.Footnote 30 That may have been a reasonable inference for the Court to draw, but it would have been in the interest of clarity if the Court had first examined the aim and content of the measure.Footnote 31 In Conditional Access Services, the Court departed from this approach when it applied the ‘centre of gravity’ test to determine whether Article 207 TFEU or Article 114 TFEU was the appropriate legal basis, yet returned to it in Daiichi Sankyo, where it considered whether the CCP could also be considered to encompass ‘commercial aspects of intellectual property’. As will be explored below, that approach might be explained by the international trade context.Footnote 32
A centre of gravity test was also applied in Mauritius Agreement, albeit within the context of Article 218 TFEU. That dispute involved the choice of what procedural, rather than substantive, legal basis needed to be applied for the conclusion of the agreement. That is in any event the way the Court presented the matter, maintaining that Parliament had confirmed at the hearing that it did not contest the status of Article 37 TEU as its substantive legal basis. Parliament did argue, however, that, as the Mauritius Agreement and the contested decision to conclude it pursue additional aims not falling within the purview of the CFSP, they do not fall exclusively within that policy for the purposes of Article 218(6) TFEU.Footnote 33 In other words, Parliament was suggesting a separate line of reasoning for the determination of the substantive legal basis and for the determination of the procedural legal basis.
Advocate General Bot reported the details of the disagreement somewhat differently, pointing out that ‘at the request of the Court at the hearing, Parliament stated that, in its view, the contested decision should have been founded on the following substantive legal bases, namely, in addition to Article 37 TEU, Articles 82 TFEU, 87 TFEU and 209 TFEU’.Footnote 34 These contrasting representations of the dispute were reflected in the respective analyses: while Advocate General Bot argued that it was ‘necessary to determine the substantive legal basis authorising the Union to adopt an international agreement before determining the procedural legal basis’,Footnote 35 the Court unfortunately paid no further heed to the choice of substantive legal basis for the decision.
Given that the procedural requirements of Article 218 TFEU vary depending on whether or not the agreement relates exclusively to the CFSP, it remains necessary to determine the appropriate substantive legal basis first. The Court’s determination of the appropriate procedure is based entirely on the symmetry between the internal and external division of competences, with the ultimate goal of ensuring legal certainty. In other words, the substantive legal basis of the decision concluding the agreement determines the type of procedure applicable under Article 218(6) TFEU. If the decision is founded exclusively on a substantive legal basis falling within the CFSP, the first sentence of that article applies, as follows from the general rule that the substantive legal basis dictates what procedure is to be followed when adopting a measure. However, the Court initiated its reasoning on the symmetry between the internal and external competences with the statement that the issue at hand was disagreement over ‘a decision concluding an agreement that pursues a main aim falling within the CFSP’.Footnote 36 Article 37 TEU was therefore identified as the substantive legal basis on the basis of the centre of gravity test. However, similarly to its judgment in Philippines PCA, the Court did not elaborate on what other aims might be involved, did not explain why the main aim was covered by the CFSP in the first place, and ignored the impact of the ‘new’ non-affectation clause in Article 40 TEUFootnote 37 on the application of the gravity test.
This raises two additional concerns. First, if the Court wishes to provide guidance on choosing the appropriate legal basis for international agreements with an eye to preventing future disputes, it is unfortunate that it merely announces the main aspect or goal of the agreement, without revealing how it came to that discovery. Second, even if the Court had outlined how it had applied the gravity test, that test in general, and the absorption doctrine in particular, are, as objectives-based theories, ill-suited to determine the scope of development cooperation, the CCP and the CFSP. These issues will be further explored below.
Measuring gravity: the objectives-based competence delimitation method
The objectives-based approach to delimiting the scope of development cooperation policy and the common commercial policy: gravitational pull
The Maastricht Treaty introduced an explicit legal basis for development cooperation, including specific objectives. Pursuant to Articles 130u-130y TEC (later Articles 177-181 TEC), EU development cooperation was ‘complementary to the policies pursued by the Member States’ and had to foster (i) sustainable economic and social development of developing countries, and more particularly the most disadvantaged among them, (ii) smooth and gradual integration of developing countries into the world economy and (iii) the campaign against poverty in developing countries. Moreover, Union development cooperation policy had to contribute to the general objective of developing and consolidating democracy and the rule of law, and to that of respecting human rights and fundamental freedoms.
The wide ambit of these objectives was confirmed in Portugal v Council. There, the Court acknowledged the significance of the fact that development cooperation had been given its own legal basis by recognising that it was entitled to its own specific scope that could encompass a range of elements from other areas to make it a viable policy. At the same time, Portugal v Council had signalled the importance and precariousness of the balancing act between on the one hand interpreting development cooperation widely enough so as to avoid making its legal basis nugatory by requiring additional legal bases for every element touching on another EU competence, and on the other hand interpreting it so widely that other legal bases were in danger of being dragged into its gravitational pull, thereby distorting both the principles of conferral and institutional balance.Footnote 38 In Small Arms and Light Weapons, the Court clarified that the objectives of development cooperation policy should not be limited to measures directly related to the campaign against poverty. Nevertheless, if a measure was to fall within development cooperation policy, it had to contribute to the pursuit of that policy’s economic and social development objectives.Footnote 39
Post Lisbon, Articles 208-211 TFEU contain the primary legal framework on development cooperation. Article 208(1) TFEU provides for the Union’s development cooperation policy and that of the Member States to ‘complement and reinforce each other’, which appears to imply a more balanced complementarity relationship than pre Lisbon, and identifies the reduction, and in the long term, the eradication of poverty as the primary objective of EU development cooperation. Apart from this primary objective, the provisions on EU development cooperation remain silent about the other objectives mentioned in Articles 130u-130y TEC/Articles 177-181 TEC. Does this imply that the Lisbon Treaty has limited the scope of EU development cooperation to measures aimed at poverty reduction or eradication?Footnote 40
More generally, the presence of specific objectives in TFEU provisions on EU external action despite the creation of general EU external action objectives in Article 21(2) TEU prompts questions on the relation or even hierarchy between these two types of objectives. The identification of poverty reduction and eradication as the primary aim of development cooperation in Article 208 TFEU appears to imply such a hierarchy.Footnote 41 However, in Philippines PCA the Court referred to Article 21(2)(d) TEU, which contains the objective of fostering the sustainable economic, social and environmental development of developing countries with the primary aim of eradicating poverty, as an example of one of the objectives in Article 21(2) TEU that development cooperation can primarily pursue. It emphasised that EU development cooperation is not limited to measures directly aimed at the eradication of poverty, but can also pursue the objectives laid down in Article 21(2) TEU, confirming in that respect Small Arms and Light Weapons .Footnote 42 The Court held that this follows from the fact that Article 208(1) TFEU provides that Union development cooperation policy be conducted within the framework of the principles and objectives of Union external action, and that Article 209(2) TFEU provides that the Union may conclude with third countries and international organisations any agreement helping to achieve the objectives referred to in Articles 21 TEU and 208 TFEU.Footnote 43 The Court therefore does not seem inclined to regard the general EU external action objectives as only incidental to the objectives mentioned in the specific provisions of each policy area. Such an approach would indeed make the common EU external action objectives in Article 21(2) TEU somewhat supernumerary.
Given the potentially broad scope of development cooperation agreements, which might render superfluous the legal bases added by it, the Council was anxious to distinguish post-Lisbon Philippines PCA from pre-Lisbon Portugal v Council.Footnote 44 However, the Court emphasised the increase in the objectives of development cooperation and in the matters concerned by it, which reflected the EU vision for development set out in the European Consensus,Footnote 45 and that this confirmed rather than departed from Portugal v Council. In that regard, the Court agreed with Advocate General MengozziFootnote 46 that the main objective of development cooperation is the eradication of poverty in the context of sustainable development, including pursuit of the Millennium Development Goals.Footnote 47
The European Consensus, the leading policy document on the EU’s perspective on development cooperation policy, interprets poverty eradication as a multidimensional concept, which reflects a broader understanding of poverty eradication, possibly encompassing different areas of EU action.Footnote 48 In line therewith, Philippines PCA referred to the broad notion of development cooperation and poverty eradication as a multifaceted concept as upheld by the European Consensus and the Development Cooperation Instrument I – the main financing instrument for development in the EU budget,Footnote 49 an intriguing example of the Court relying on a non-legally binding instrument, here invoked in combination with a pre-Lisbon legislative instrument, in order to determine the objective and appropriate legal basis of a measure.Footnote 50 The fact that the Court also relied on policy documents in Philippines Borders Management Footnote 51 and Small Arms and Light Weapons Footnote 52 appears to indicate that the Court’s reliance on policy documents in order to support the choice and scope of a legal basis is particularly prominent in cases concerning development cooperation.Footnote 53 However helpful these documents may be, the constitutional significance of the choice of legal basis calls, as Advocate General Mengozzi put it, for ‘a certain vigilance’.Footnote 54 That vigilance is not only a responsibility of the Court, but also of the Union’s political institutions: in revising development cooperation policy documents and secondary law, they must take into account that the way they do so is likely to be used by the Court as an interpretative tool when determining the scope of EU development cooperation policy.Footnote 55 In other words, measures such as the pre-Lisbon Instrument for StabilityFootnote 56 and the post-Lisbon Instrument Contributing to Stability and Peace,Footnote 57 which were adopted under a joint development cooperation and economic, financial and technical cooperation legal basis,Footnote 58 while arguably also contributing to CFSP goals, could predetermine the scope of development cooperation in future cases. The Council would be well advised to take that into account when, for financial or other reasons, it agrees to the pursuance of CFSP objectives under development cooperation competences.
Be that as it may, the Court’s broad interpretation of poverty eradication as the principal objective of development cooperation policy leaves room for an extensive scope of measures, even if development cooperation were to be limited to poverty eradication.Footnote 59 In fact, Philippines PCA appears to imply that the pre-Lisbon case law remains largely valid for determining the post-Lisbon scope of development cooperation.Footnote 60 Nevertheless, the broad scope of the objectives of EU development cooperation policy, potentially covering nearly all Union external action, implies that determining its limits on the basis of its objectives is a precarious exercise.Footnote 61 Yet the test formulated in Portugal v Council and confirmed in Philippines PCA to determine whether a development cooperation legal basis suffices, or additional legal bases need to be added, is two-pronged. Not only do the provisions have to contribute to the pursuit of the development cooperation objectives, they must also not contain obligations so extensive that they may be considered to constitute objectives distinct from those of development cooperation that are neither secondary nor indirect.Footnote 62 The Court assessed the second aspect of the test by requiring that the provisions were limited to identifying the aims and subjects of the cooperation but did not go so far as to determine in concrete terms how the cooperation will be implemented.Footnote 63 As the provisions in both cases met the test, the development cooperation legal basis ‘absorbed’ the other legal bases. The second prong of the test implies a more content-focused criterion next to the objectives-based first prong to determine the scope of development cooperation. By also focusing on the content of the provisions, the Court avoided subjecting other areas of EU external action to the overpowering gravitational pull potentially engendered by applying solely an objectives-based approach to development cooperation in combination with a wide interpretation of its objectives. As will be discussed in relation to Mauritius Agreement, Daiichi Sankyo and Conditional Access Services, the Court’s case law post Lisbon appears to use an increasingly content-based line of reasoning to determine the appropriate legal basis of a measure, which seems the most viable solution to determine the scope of development cooperation, the CFSP and the CCP.
As set out in the TFEU, the CCP objectives are rather opaque. Article 206 TFEU provides that, by establishing a customs union, the Union is to ‘contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs and other barriers’.Footnote 64 The creation of a customs union,Footnote 65 linked to the aim of building the internal market,Footnote 66 constitutes the foundation of the CCP.Footnote 67 Article 207(1) TFEU on the CCP does not refer to any objective as such, but rather to areas that the CCP covers. Arguably, the objective traditionally assigned to the CCP is the liberalisation of international trade, as currently still reflected in Article 206 TFEU.Footnote 68 Nevertheless, Article 207(1) TFEU requires that ‘the common commercial policy shall be conducted in the context of the principles and objectives of the Union’s external action’. This alignment between the CCP objectives and the general external action objectives in Article 21 TEU has been used to explain the established practice for trade agreements and measures to be used to attain other objectives of EU (external) action.Footnote 69 While the consideration of non-trade objectives when implementing the CCP is in line with the requirements of consistency in the Treaties, extending the argument too far would lead to the conclusion that nearly every act of external action can be pursued under the scope of the CCP. This would not only be ineffective for determining the scope of the CCP and delineating it from other competence areas, but would also contravene the principle of conferral.
The Court, from early on in the development of EU external action, needed to develop a line of case law to delineate the CCP from other competence areas. In an early phase, the CCP was formulated in broad terms, such as notably in Opinion 1/75Footnote 70 and Opinion 1/78.Footnote 71 The Court displayed a more cautious approach in Opinion 1/94Footnote 72 by deciding that only certain parts of the TRIPs agreement fell within the scope of the CCP, and hence that the agreement was mixed.Footnote 73 The judgments in Daiichi Sankyo and Conditional Access Convention, arguably showing the Court in its former more audacious incarnation, grant the CCP a wide scope, most clearly with the inclusion of commercial aspects of intellectual property rights in the CCP.Footnote 74 Relevant for present purposes is the reasoning the Court followed to reach this conclusion. Since the early 2000’s the Court assesses whether a measure falls within the CCP by determining whether it is ‘essentially intended to promote, facilitate or govern trade and has direct and immediate effects on trade’.Footnote 75 Both judgments start with this rule but add the criterion of the ‘specific link with international trade’: only acts displaying such a link are capable of falling within the CCP.Footnote 76 In Conditional Access Convention, the Court established that there was such a link because the Convention at issue extends the internal legal protection to the external stage.Footnote 77 In Daiichi Sankyo, the fact that TRIPs is ‘an integral part’ of the WTO system was decisive in confirming the specific link with international trade. The Court added that the ‘context of those rules is the liberalisation of international trade’ and not the harmonisation of the laws of the member states.Footnote 78 In both cases the content, respectively the context was therefore crucial to determine that the decisions concluding these agreements fell within the scope of the CCP.Footnote 79 Combined with the initial test formulated in Opinion 2/00, which arguably aims to assess a measure’s aim, the Court seems to intend to strike a balance between the aim and content aspects of the centre of gravity test in the area of the CCP as well.
Defying gravity: delimiting development, transport, environment, immigration and trade
The consequence of applying the absorption theory in Philippines PCA is that provisions on environment, transport and readmission of third country nationals can, within certain limits, fall under development cooperation. Some issues remain unresolved. Do the provisions on environment, readmission or other non-development provisions in a development cooperation agreement take on the parallel natureFootnote 80 of the development cooperation competence,Footnote 81 even if they are implemented separately? Furthermore, the Philippines Agreement is also based on Article 207 TFEU. Why were the additional legal bases regarding environment, transport and readmission challenged, but not regarding the CCP?
Development and environment have been intertwined in the international agenda at least since the 1987 report Our Common Future, also known as the ‘Brundtland Report’,Footnote 82 which in turn significantly influenced the 1992 Rio Declaration.Footnote 83 The link between environment and development was further highlighted in the Millennium Development Goals, the seventh of which aims to ensure environmental sustainability. The European Consensus builds explicitly on the Millennium Development Goals.Footnote 84 Post Lisbon, the link between EU external environmental policy and EU development cooperation policy is made explicitly in Article 21(2) TEU. Moreover, Article 208 TFEU reaffirms that Union development cooperation policy must be conducted ‘within the framework of the principles and objectives of the Union’s external action’Footnote 85 and must ‘comply with the commitments and take account of the objectives they have approved in the context of the United Nations and other competent international organisations’.Footnote 86 These principles, objectives, and commitments all contain important environmental obligations. Furthermore, Article 11 TFEU implies an obligation for the Union not only to mainstream environmental protection and sustainable development into its policies, but also to ensure consistency between environmental policy and its other policies.Footnote 87Philippines PCA appears consistent with that approach.
The European Consensus also explicitly provides for the Union to promote a ‘sustainable transport sectoral approach’.Footnote 88 As Advocate General Mengozzi pointed out, the Philippines Agreement’s provisions on transport aim at ensuring that the contracting third country respects minimum international standards of transport safety and security, which should contribute both to the stabilisation and the sustainability of its travel networks and to that country’s smooth and gradual integration into the global economy in that sector.Footnote 89 They do not prescribe in any concrete form how this cooperation should be implemented, and are therefore distinguishable from the provisions on transport at issue in Opinion 1/08.Footnote 90
The dividing line between development cooperation and immigration policy is more politically sensitive. The preamble to the draft Philippines Agreement noted that the provisions of the Agreement that fall within the scope of the Area of Freedom, Security and Justice bound the ‘United Kingdom and Ireland as separate Contracting Parties, or alternatively, as part of the European Union’, in accordance with Protocol 21,Footnote 91 and Denmark in accordance with Protocol 22.Footnote 92 In other words, adding Article 79(3) TFEU entailed the application of the opt-in and opt-out schemes laid down in these protocols. The European Consensus refers to the nexus between migration and development cooperation in the context of poverty eradication as a multi-dimensional notion.Footnote 93 After several initiatives at UN levelFootnote 94 the EU reinforced the development-migration nexus in policy documents, underlining the need to incorporate migration in development cooperation.Footnote 95 Nevertheless, the incorporation of readmission provisions dates back to the Joint Declaration attached to the agreements with LaosFootnote 96 and Cambodia,Footnote 97 which provide the basis for the conclusion of readmission agreements between those countries and the EU member states. In sanctioning the possibility for agreements in the area of development cooperation to contain provisions on environment and readmission, Philippines PCA is in line with the Union’s evolving approach. Nevertheless, while Advocate General Mengozzi acknowledged that the readmission agreement contemplated in Article 26(4) Philippines Agreement would have to be based on the specifically dedicated legal basis of Article 79 TFEU,Footnote 98 the Court’s acknowledgment that the readmission provisions were more than merely programmatic but still within the scope of development cooperation suggests a subtle yet significant broadening of the scope of development cooperation. In contrast with Portugal v Council, in which the Court examined whether the provisions on other policy areas were declaratory or concrete, the criterion in Philippines PCA shifted to the question whether they require specific further implementation. The flexibility of that test may arguably allow the Commission and the European External Action Service more leeway in developing a comprehensive approach to development cooperation.Footnote 99 Nevertheless, the question remains what the impact is of the Council’s acknowledgment that ‘in providing for the conclusion as soon as possible of an agreement governing admission and readmission, the Framework Agreement contains a best-endeavours obligation which constitutes important leverage for obtaining from the Republic of the Philippines a result that is hard to obtain separately’.Footnote 100 That appears to reveal that the reason why the readmission provision was entered into the Philippines Agreement was not because of the inherent link between development cooperation and migration policy, but in order to incentivise the Philippines to enter into a readmission agreement. In other words, the reasoning would not so much be that the conclusion of a readmission agreement is an integral part of a proper development cooperation policy, but that the latter is used to obtain the former. That suggests the existence – to the Council – of a separate aim with respect to readmission that is distinct from development cooperation. Yet the development-migration nexus is part of the Union’s development agenda, as is evident not just in the European Consensus but also in Council policy documents.Footnote 101 Furthermore, instrumental considerations based on the need for leverage in negotiations on a readmission agreement seem insufficiently objective as a ground for the choice of legal basis.
Matters are different with respect to trade provisions. While the development cooperation legal basis can absorb provisions on other substantive areas of cooperation, trade provisions appear invariably – including in the Philippines Agreement – to require the CCP legal basis.Footnote 102 However, the provisions in Title III ‘Trade and Investment’ of the Philippines Agreement do not appear to go beyond the test formulated to assess whether additional legal bases on environment, transport and readmission are necessary: they do not go beyond declarations on the aims and subjects of the cooperation, and therefore do not contain obligations so extensive that they form distinct objectives. Nevertheless, the relationship between the CCP and development cooperation can be explained by the specific nature of the CCP competence on the one hand, and due to history on the other.
Like development cooperation, the CCP has a wide scope.Footnote 103 As opposed to development cooperation, the CCP is an a priori exclusive competence.Footnote 104 The Court expounded upon both aspects in Opinion 1/75,Footnote 105 and further elaborated upon the application of the wide scope in Opinion 1/78,Footnote 106 holding that UN Conference on Trade and Development commodity agreements that also have a clear development cooperation aim are covered by the CCP competence. Trade measures are often used for aims incidental to the policies flowing from their legal basis, notably to pursue development cooperation objectives (e.g. the Generalised System of Preferences),Footnote 107 but also to attain environmental aims and ‘high politics’ foreign policy objectives.Footnote 108 Historically, the CCP predates development cooperation as an explicit EU competence and the relationship between the EU and the developing countries has always been based on ‘trade and aid’. EU agreements with developing countries can be categorised into ‘generations of agreements’: ‘first-generation’ agreements only contained trade provisions, ‘second-generation’ agreements also covered limited areas of economic cooperation, while ‘third-generation’ agreements cover a variety of areas, aimed at a comprehensive framework of cooperation.Footnote 109 Before Maastricht these ‘third-generation’ agreements were based on the CCP and the flexibility clause,Footnote 110 as a specific development cooperation legal basis was lacking.Footnote 111 After Maastricht, they were based on the CCP and development cooperation legal bases. The CCP legal basis was therefore consistently present in the agreements the EU concluded with developing countries, which may indicate a certain path-dependency as to why trade provisions cannot be covered by the development cooperation legal basis. Nevertheless, the notion that ‘trade and aid’ in EU comprehensive cooperation agreements, as a rule, go together like a horse and carriage should not be taken to imply that agreements based solely on a development cooperation legal basis are impossible.Footnote 112
Finally, it has been suggested that the test in Portugal v Council (and in Philippines PCA) can provide a solution for the post-Lisbon delimitation between the CFSP and development cooperation. The possibility of involving several areas of cooperation under the umbrella of one legal basis as long as they fulfil the condition that specific provisions are ‘limited to identifying the aims and subjects of the cooperation’ and do not ‘go so far as to determine in concrete terms the manner in which the cooperation will be implemented’ would meet the requirements flowing from consistency, the need for a legal delimitation between the different areas, as well as the non-affectation clause in Article 40 TEU.Footnote 113 These issues will be further explored in the next section.
Escaping the black hole: an objectives-based centre of gravity test for the CFSP?
Pre Lisbon, the delimitation between the first and second pillars was governed by the former Article 47 TEU, which prohibited the CFSP from affecting Community law. In Small Arms and Light Weapons, the Court used the objectives-based centre of gravity test to delineate the CFSP from development cooperation, holding that a combination of legal bases was impossible with regard to a measure that pursues a number of objectives or that has several components falling, respectively, within development cooperation policy and within the CFSP, and where neither component is incidental to the other.Footnote 114
The Court held that if the provisions of a CFSP measure, on account of both aim and content, had as their main purpose the implementation of a Community policy, and if they could properly have been adopted on the basis of the TEC, they infringed ex Article 47 TEU.Footnote 115 In other words, in order to determine under which pillar a provision should have been adopted, it was necessary to identify its main purpose, which could be gleaned both from its aim and its content. If that main purpose amounted to development cooperation, and if the provision could have been adopted within that policy, it should have been so adopted. The Court then pointed out that no sustainable socio-economic development was possible without peace and security, and that the pursuit of development policy objectives necessarily proceeded via the promotion of democracy and respect for human rights.Footnote 116 It referred to the European Consensus and a resolution on small arms and light weapons adopted by the development CouncilFootnote 117 to underline the importance of fighting the proliferation of small arms and light weapons.Footnote 118
That argument only goes so far. It would be impossible to define the scope of development cooperation by including all measures that could potentially contribute to developmental goals:Footnote 119 any measure contributing to peace and stability in a certain region will, if only indirectly, contribute to developmental goals. Such measures provide necessary background circumstances for even the most minimal socio-economic goals to have a chance at succeeding. Sending troops to stop warring parties from harming civilians would clearly benefit developmental goals; it would equally clearly fall within the CFSP.Footnote 120 Nevertheless, the Court emphasised that a measure combating the proliferation of small arms and light weapons could be adopted under EU development cooperation only if by virtue both of its aim and its content, it fell within the scope of development competences.Footnote 121
Given that the CFSP has lost its specific objectives, applying that objectives-based approach post Lisbon is not at all straightforward.Footnote 122 Article 23 TEU requires that the CFSP be conducted in line with the principles and objectives laid down in the first chapter of Title V TEU. Article 21(1) TEU outlines the principles that should guide Union external action, while Article 21(2) TEU lays down the general external action objectives.Footnote 123 These include objectives from specific areas of EU external action in the pre-Lisbon era, as well as some new aims. In particular, the distinction suggested by AG Mengozzi between ‘preserving peace and/or strengthening international security’ (the CFSP) and ‘social and economic development’ (development cooperation)Footnote 124 would not in se resolve any conflict between ordinary EU external action and the CFSP. Both would fall under the general EU external action objectives in Article 21(2)(c) and 21(2)(d) TEU, respectively. Moreover, the former Article 47 TEU was replaced by Article 40 TEU, which prohibits any mutual affectation between the ‘Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union’ (i.e. the former first pillar competences) and the CFSP.
Legal Basis for Restrictive Measures Footnote 125 offered the Court the first opportunity to clarify the post-Lisbon delimitation rules on the CFSP. Parliament had asked the Court to annul a regulation imposing restrictive measures directed against persons and entities associated with Usama bin Laden, Al-Qaida and the Taliban,Footnote 126 arguing that it was wrongly based on Article 215 TFEU (in Part Five ‘The Union’s External Action’, Title IV ‘Restrictive Measures’), and that Article 75 TFEU (in Part Three ‘Union Policies and Internal Actions’, Title V ‘Area of Freedom, Security and Justice’) was the correct legal basis. In choosing between those two provisions, the Court attached significant importance to the connection between Article 215 TFEU and the CFSP.Footnote 127
Advocate General Bot had proposed a remarkable solution to the post-Lisbon lack of specific CFSP objectives. Despite the objectives listed in Article 21(2) TEU being common to EU external action, and none of them being reserved for the CFSP, he considered that those set out in sub-paragraphs (a)-(c) ‘are among those traditionally assigned to that policy’.Footnote 128 The Advocate General argued that the objectives in Article 21(2)(a)-(c) TEU are essentially the same as the CFSP objectives in ex Article 11(1) TEU. That is only partially true: the objective in Article 21(2)(b) TEU to ‘consolidate and support democracy, the rule of law, human rights and the principles of international law’ also corresponds to that assigned to development cooperation by the former Article 177(2) TEC, except for the addition of the ‘principles of international law’. The latter did not feature in ex Article 11(1) TEU, nor in the former Article 177(2) TEC, but was added by Lisbon. The Advocate General further noted that the objectives defined in Article 21(2)(a)-(c) TEU are consistent with the provisions of Article 24(1), first sub-paragraph TEU, the basic provision on the CFSP. He concluded therefrom that EU external action pursuing one or more of the objectives in Article 21(2)(a)-(c) TEU, in particular the objective of preserving peace and strengthening international security, must be regarded as falling within the CFSP.Footnote 129 That interpretation is another notable example of path dependency and would appear to be at least to some extent contra legem, in that Article 21(2) TEU unequivocally regards the objectives as common to EU external action as a whole.Footnote 130
The Court did not attach the specific objectives of Article 21(2)(a)-(c) TEU to the CFSP. It referred to the preamble of the contested regulation in order to determine its purpose,Footnote 131 an approach that has long since prompted concerns that institutions may draft preambles or enacting provisions of acts so as to set the Court ‘on the right track’.Footnote 132 In that sense, determining the legal basis of a measure by looking at its predominant aim may give rise to a form of ‘legislative hazard’.Footnote 133 Nevertheless, the objectives mentioned in the act may still be informative in the sense that they provide an insight into what the institutions thought they were doing.
In Mauritius Agreement, Advocate General Bot reiterated his view that the objectives in Article 21(2)(a)-(c) TEU are ‘among those that are traditionally assigned to the CFSP’,Footnote 134 this time adding Article 21(2)(h) TEU. However, the latter provides for EU external action to ‘promote an international system based on stronger multilateral cooperation and good global governance’, which was added by the Lisbon Treaty as a general objective of EU external action, and cannot therefore plausibly be regarded to be ‘traditionally assigned to the CFSP’. The Advocate General also argued that Article 21(2) TEU should be read together with more specific provisions applicable to each policy in order to determine the policy to which an objective is specifically related.Footnote 135 That is a plausible approach. Nevertheless, Article 21(3) TEU’s exhortation for the Union to ‘respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the development and implementation of the different areas of the Union’s external action’ implies that such ‘reading together’ ought not to be applied so as effectively to limit objectives exclusively to one policy. In other words, Advocate General Bot may well be correct in arguing that certain objectives can more readily be pursued within certain policies. However, the pursuance of those objectives should not automatically lead to the conclusion that a certain policy field is applicable.
The Court’s judgment in Mauritius Agreement left the question of how to choose between the CFSP and ordinary EU external action mostly undecided. Unless one is willing to adopt Advocate General Bot’s approach, which sits uneasily with the Lisbon Treaty’s aim to infuse more unity into EU external action through common objectives, the absence of specific CFSP objectives post Lisbon makes it considerably more difficult for the Court to apply Article 40 TEU.Footnote 136
In Legal Basis for Restrictive Measures, the Court did not follow an absolute objectives-based approach to determine the legal basis, but equally paid attention to the context and the wording of the provisions. That is, in essence, a more content-based approach, which, as also argued in the context of Philippines PCA, seems the most feasible option.Footnote 137 However, it should be kept in mind that the choice between the ‘context’ or the ‘content’ criterion would be decisive for the outcome of the choice of legal basis in Mauritius Agreement: while the decision takes place in a CFSP context, the provisions of the agreement relate more to the Area of Freedom, Security and Justice.Footnote 138 Unfortunately, as already pointed out, the Court did not address the choice of the substantive legal basis. Further guidance on how the rules on the choice of legal basis have to be applied when a CFSP legal basis is involved would, however, be welcome, especially as a combination of a CFSP and non-CFSP legal basis regarding international agreements seems viable post Lisbon.Footnote 139 The Court is unlikely to be able to avoid determining the substantive legal basis and giving indications on the delimitation between the CFSP and the Area of Freedom, Security and Justice in the currently pending Tanzania Agreement case.Footnote 140
Arguably, the Court ought, from now on, to strike a balance between the aim and content aspects by referring predominantly to the content of a measure instead of to its objectives in order to determine its legal basis.Footnote 141 That is not to say that objectives are irrelevant in determining the legal basis. When the content of an agreement predominantly provides for the financing of certain activities, the nature of those activities and hence the objectives of the financing agreement will be crucial to determine the legal basis. A balance between aim and content is therefore imperative, all the while taking into account the context of the measure, when this is of particular relevance. At any rate, the common objectives of Article 21(2) TEU ought to inspire the Court to a wider application of its reasoning in Portugal v Council, which includes both the aim and content aspect.Footnote 142
Choice of legal basis and parliamentary scrutiny of international agreements: sailing into uncharted waters
As Advocate General Kokott pointed out in her Opinion in Tanzania Agreement, while a legal basis dispute may at first appear to concern ‘a question of technical detail’ it often has ‘considerable political and even constitutional implications’, in particular by determining the respective powers of the institutions.Footnote 143 This is well illustrated by Mauritius Agreement, where Parliament’s powers of oversight over international agreements in the CFSP were at stake.
Since Roquette Frères,Footnote 144 the Court has underlined that the participation of the European Parliament in decision-making reflects the fundamental democratic principle whereby the people should participate in the exercise of power at Union level through the intermediary of a representative assembly. However, in the CFSP, the drafters of the Treaties have chosen to limit Parliament’s role. The merits of that choice are clearly debatable. Nevertheless, it is in line with the situation in many States, where foreign policy is reserved for the executive, and the role of the judiciary and the legislature is limited.Footnote 145 That is especially the case regarding so-called ‘high politics’ issues such as security and defence.Footnote 146
While Article 36 TEU sets out a number of possibilities for Parliament’s involvement in the CFSP,Footnote 147 and while Parliament attempts to influence the CFSP through its budgetary competences and inter-institutional agreements,Footnote 148 all in all, it is held at bay from any particular CFSP measure, and can only exercise influence on general policy choices.Footnote 149 Nevertheless, parliamentary involvement in international agreements is now the rule, except for agreements relating exclusively to the CFSP. Article 218(10) TFEU further provides for Parliament to be immediately and fully informed ‘at all stages of the procedure’.
In his Opinion in Mauritius Agreement, Advocate General Bot argued that where the agreement concerned relates exclusively to the CFSP, ‘the Council cannot be required to inform the Parliament in such full detail as where consent from or consultation of the Parliament were required’. The Advocate General opined that, in so far as Parliament was not required to give its opinion on the content of the Agreement, it was not compulsory to inform it about the progress of the negotiations.Footnote 150 Yet, if one were to conclude that there is no way of influencing the content of the Agreement from the fact that Parliament is not required to be consulted nor to consent to the agreement, that would be a grave underestimation of the potential influence of both public discussion of a proposed agreement and of Parliament’s budgetary powers on the content of the agreement. Furthermore, there appears to be no link in the text of Article 218 TFEU or any link of logical necessity between the right of Parliament to be informed and its right to consent to or be consulted about a proposed international agreement. It could be argued that Parliament’s lack of involvement through consultation or consent ought to be compensated by adopting a more forthcoming approach in keeping Parliament involved. Moreover, full and timely compliance with Article 218(10) TFEU gives Parliament the possibility to indicate, at an earlier stage of the procedure, that it considers the agreement not to relate exclusively to the CFSP within the meaning of Article 218(6) TFEU. That in turn may provide an opportunity to rectify the potentially incorrect legal basis and submit the agreement for consultation or consent before adoption. That timing is crucial, as after conclusion of the agreement, Parliament’s only available remedy is an action for annulment which, even if successful, is unlikely to lead to renegotiation of the agreement along the lines favoured by Parliament. At any rate, the Court adopted a different view than did the Advocate General.
Of course, by qualifying the Mauritius Agreement as ‘an agreement relating exclusively to the CFSP’, the Court had no other choice than, on the basis of Article 218 TFEU, to accept the strict limitation of Parliament’s role. Nevertheless, in a significant move, the Court held that the exclusion of its own jurisdiction over the CFSP was an exception to the general rule in Article 19 TEU and thus had to be interpreted restrictively. In particular, that exception did not go so far as to preclude the Court from having jurisdiction to interpret and apply a provision such as Article 218 TFEU that does not fall within the CFSP, even though in the case at issue that article laid down the procedure on the basis of which a CFSP act had been adopted.Footnote 151
Having jumped that hurdle, the Court straightforwardly established that the requirements of Article 218(10) TFEU had not been met. After having announced the opening of negotiations, the Council did not inform Parliament of the adoption of the contested decision, nor of the signing of the agreement until three months later, and 17 days after their publication in the Official Journal. The Council’s argument that the period within which Parliament was informed was only ‘slightly longer than usual’, but in any event ‘still reasonable, taking into account also the fact that this period included the summer break’Footnote 152 sounds remarkably cavalier. At any rate, Parliament has in the past often complained of a lack of involvement compounded by the fact that information reached it too late.Footnote 153 As the Court considers this to constitute an essential procedural requirement, its violation leads to nullity.Footnote 154
Despite having already established the violation of Article 218(10) TFEU and its consequences, the Court in Mauritius Agreement elaborated on Parliament’s role in exercising democratic scrutiny in the CFSP. Recalling Roquette Frères,Footnote 155 the Court added that Article 218(10) TFEU is an expression of the democratic principles on which the Union is founded. By inserting Article 218(10) TFEU in a separate provision applicable to all types of procedures envisaged in Article 218 TFEU, including those involving CFSP agreements, the Lisbon Treaty had even enhanced the importance of that rule.Footnote 156 In other words, the duty to keep Parliament informed is applicable to all negotiations for international agreements. That reasoning would seem to be transposable to other aspects of Article 218 TFEU that do not contain explicit rules for the CFSP, such as the possibility for Member States, Parliament, Council or Commission to obtain the Court’s opinion as to whether an agreement envisaged is compatible with the Treaties (Article 218(11) TFEU).
In particular, the Court emphasised that Parliament’s limited role in the CFSP does not imply that it has no right of scrutiny. On the contrary, this is precisely the purpose of the information requirement in Article 218(10) TFEU:Footnote 157 if Parliament is not immediately and fully informed at all stages of the procedure, it is unable to exercise its right of scrutiny regarding the CFSP or to formulate its views, in particular, in relation to the legal basis.Footnote 158 Moreover, if democratic control is allowed at an early stage, this may even help to prevent subsequent legal disputes between the institutions.Footnote 159
Conclusion
All cases examined above illustrate that the constitutional importance of the choice of legal basis for EU external action has not been lost post Lisbon. In particular, choosing what legal basis or bases apply, and how to go about making that choice, determines both whether a viable EU external policy in the fields examined above is possible, and how far the right of Parliament to provide democratic scrutiny of international agreements reaches.
First, Philippines PCA provides an illustration of the impact of the choice of legal basis on the viability of EU external policies, by carving out a space for taking more comprehensive development cooperation measures. Nevertheless, the Court must be wary of how its logic might play out in different factual circumstances. For example, given the Court’s broad interpretation of the CCP, what would happen if the logic of Philippines PCA on the broad scope of development cooperation were transposed to the equally broad CCP pursuant to Daiichi Sankyo and Conditional Access Convention? If policies as concrete as the Philippines Agreement’s readmission provisions can fit within the scope of development cooperation, could the same not be said of equally deep forms of development cooperation within the scope of the CCP?Footnote 160 Or does the Court’s ‘new approach’ to development cooperation as per Advocate General MengozziFootnote 161 imply that, as a CCP legal basis has been almost invariably necessary if a development cooperation measure contains elements of trade, vice versa a development cooperation legal basis is necessary in addition to a CCP legal basis whenever an act within the latter area contains elements of the former? It is probably safe to assume that whatever the Court decides in future cases on the scope of development cooperation, it will build on its pre-Lisbon case law. In that sense, there is a parallel with the case law on implied external competences, which as per Rights of Broadcasting Organisations remains valid for the interpretation of Article 3(2) TFEU.Footnote 162 The Court appears to opt for an approach favouring continuity and hence intertemporal legal certainty over taking into account shifts in wording or emphasis in the Treaties in comparison to the pre-Lisbon situation. Second, as Advocate General Poiares Maduro put it, ‘it is because it affects the institutional balance that the Court attaches so much importance to the choice of legal basis’: it determines the applicable decision-making procedure, which in turn has ramifications for the determination of the content of an act.Footnote 163 Cases like Mauritius Agreement both illustrate the constitutional importance of the choice of legal basis in that regard and put it into perspective. The fact that the agreement at issue there pertained exclusively to the CFSP entailed limited parliamentary scrutiny, but that did not imply that no scrutiny at all was possible. This shows the Court’s willingness to ensure parliamentary oversight, even over the CFSP, and illustrates the wider tendency to ‘parliamentarise’ foreign policy.Footnote 164 Arguably, that evolution will, for the foreseeable future, more likely take place through subtle shifts (e.g. the presence of CFSP elements in non-CFSP measures such as development cooperation instruments) than through major innovations in the CFSP itself. At the same time, the Court’s jurisdiction over Article 218 TFEU, even if the agreement falls exclusively within the scope of the CFSP, may in turn illustrate a tendency of ‘judicialisation’ of that field. Indeed, in holding that the accession agreement of the EU to the European Convention on Human Rights is incompatible with the Treaties inter alia because the European Court of Human Rights would have jurisdiction over the CFSP,Footnote 165 the ECJ may well be trying to coax the Member States, as Masters of the Treaties, towards the full-scale abolition of the exception to its jurisdiction laid down in Article 24(1) TEU and Article 275 TFEU, and hence the extension of its jurisdiction over the CFSP.Footnote 166 That would at least potentially have the effect of taking the sting out of choice of legal basis disputes on the border between the CFSP and other EU policies.
For the time being, the institutions will have to live with the obvious impact that the Court’s choices in reviewing the compliance with the principle of conferral and the choice of legal basis has on the pursuit of viable external policies and on the institutional balance, even if that entails them sailing on stranger tides indeed.
